Bollinger v. Wagaraw Bldg. Supply Co.

Citation6 A.2d 396,122 N.J.L. 512
Decision Date23 May 1939
Docket NumberNo. 40.,40.
PartiesBOLLINGER v. WAGARAW BLDG. SUPPLY CO.
CourtUnited States State Supreme Court (New Jersey)
6 A.2d 396
122 N.J.L. 512

BOLLINGER
v.
WAGARAW BLDG. SUPPLY CO.

No. 40.

Court of Errors and Appeals of New Jersey.

May 23, 1939.


6 A.2d 397

[Copyrighted material omitted.]

6 A.2d 398

Appeal from Supreme Court.

Proceeding for compensation under the Workmen's Compensation Act, N.J.S.A. 34:15-1 et seq. by John M. Bollinger, employee, opposed by the Wagaraw Building Supply Company, employer. From a judgment of the Supreme Court, 121 N.J. L. 606, 3 A.2d 810, affirming a judgment of the Court of Common Pleas, which affirmed the Workmen's Compensation Bureau's" dismissal of the petition, petitioner appeals.

Reversed and remanded.

Isadore Rabinowitz and Nathan Rabinowitz, both of Paterson (Isadore Rabinowitz, of Paterson, of counsel), for appellant.

Kalisch & Kalisch, of Newark (Isidor Kalisch, of Newark, of counsel), for appellee.

BROGAN, Chief Justice.

This is an appeal from a Supreme Court judgment in a compensation case. Prior to the consideration of the case by the Supreme Court on certiorari, the petition for compensation had been dismissed in the Bureau and such dismissal affirmed in the Bergen County Court of Common Pleas. The Supreme Court concluded that the dismissal of the petition was proper and affirmed the judgment of the Pleas.

The facts of the case are these: Petitioner, John M. Bollinger, since deceased, was employed by the respondent in operating a machine which turned out building blocks made of ashes, sand and cement. In the performance of this work a certain quantity of the sand and ashes inevitably found its way into the shoes of the workmen thus employed and into the pockets of their garments. It appears that the petitioner had a pigmented mole on his left foot, about a half inch in diameter, located on the outer aspect of his instep, just above the little toe. He testified that on the afternoon of July 15, 1936, he felt a severe pain in his left foot where the mole was located; that it bothered him "real bad" and that after quitting work and when he was removing his socks, preparatory to taking a shower bath, the stocking was stuck to the mole and was stained with blood. Upon examination "it just looked like a little scratch, a little spot" and, further, "* * * like the ashes irritated it a little bit." Later that evening, when he went home, his wife applied a home remedy, "a Red-Cross sticker" to the affected part. This condition during the weeks that followed did not bother him sufficiently to cause him to "lose work" but about four weeks later the mole started "to ooze" and, upon the advice of his physician, he went to the Paterson General Hospital. The mole was then found to have developed into a malignant cancer (melanoma) and it was surgically removed. He remained in the hospital for three days. Six weeks later—during the interval he walked on crutches—another operation was performed upon the foot and leg as far as the groin. This operation was necessary because of objective evidence that

6 A.2d 399

the disease had spread. This time he remained in the hospital thirty-eight days. In January, 1937, he returned to work and was assigned to a light task "around the yard." These facts, concerning the injury, had corroboration in the testimony of Mrs. Bollinger and Howard Dinger, a fellow employee. Petitioner's case was determined in the Bureau on July 22, 1937. The review in the Pleas was disposed of July 15, 1938. The petitioner died June 3, 1938.

The Referee in the Bureau found that the condition complained of was "purely occupational and not the result of an accident arising out of and in the course of employment." Obviously the Referee concluded that petitioner suffered an occupational disease. We cannot agree that it was such disease. An occupational disease is one that from common experience is visited upon persons engaged in a particular occupation, in the usual course of events. It is one that is incidental to the employment itself, e. g, painters become affected with lead colic or lead poisoning; telephone operators develop ear trouble; phosphorous poisoning is common to those who work in the manufacture of fireworks. These examples might be multiplied. In such instances they are injuries or diseases common to workers in those particular trades and, manifestly, do not usually arise by accident as the term ""accident" is commonly understood. Such diseases are not compensable unless made so by statute. R.S. 34:15-31, N.J.S.A. 34: 15-31.

We now turn to the judgment of the Pleas. The...

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